By Peter Baker
In a letter included in a sealed court filing Tuesday, Bush lent powerful Republican backing to the Clinton administration's attempt to prevent independent counsel Kenneth W. Starr from questioning agents. Without the promise of confidentiality, Bush wrote, future presidents may not trust those assigned to guard them and may put themselves at risk.
Yet the letter sent privately to Secret Service Director Lewis C. Merletti also offered the first glimpse of Bush's own thoughts about the Lewinsky matter and its long-term ramifications for the presidency, which he has avoided commenting on publicly.
"I can tell you, sir, that I am deeply troubled by the allegations swirling around there in Washington . . . [and] what all this might do to the office I was so proud to hold," Bush wrote Merletti. "But regardless of all that, I feel very strongly that the USSS [United States Secret Service] agents should not be made to appear in court to discuss that which they might or might not have seen or heard."
Bush is the only one of Clinton's predecessors who has expressed solidarity with the efforts of the Secret Service to assert a new and legally untested "protective function" privilege that would shield its personnel from prosecutors' subpoenas. Jimmy Carter has not expressed an opinion, according to a spokeswoman, while Ronald Reagan's office did not respond to a written request for his position or that of his wife, Nancy Reagan.
In a statement issued through an aide yesterday, Gerald R. Ford said, "I have totally refrained from any comment involving the current allegations in Washington. I do not feel I should do so in this matter."
Starr has filed a motion seeking to compel Secret Service testimony to determine whether Clinton had a sexual relationship with Lewinsky and then tried to cover it up in the now-dismissed Paula Jones lawsuit. A retired Secret Service officer has told a grand jury that Clinton and Lewinsky were together in the Oval Office in 1995, but weeks of inconclusive talks between Starr and the Justice Department have failed to produce a deal to bring current officers before the grand jury.
Officials familiar with the newly claimed privilege acknowledged that what uniformed Secret Service officers or plainclothes agents might have seen or heard about presidential encounters with Lewinsky would be material to Starr's investigation. But they maintained that such information would be covered by the privilege. Consensual sex, if it occurred, would not be a crime. Under this formulation, only if they witnessed conduct by a president that was itself criminal -- taking a bribe, for instance -- would Secret Service officers be obligated to testify about it.
Such a privilege has never been legislated or found by any court. But the Treasury Department, which oversees the Secret Service, and the Justice Department, which is acting as the agency's lawyer, argued in sealed papers filed in U.S. District Court this week responding to Starr's motion that it is a logical extension of past practices and precedents.
Independent experts and even some administration officials, however, believe the legal case for such a position is weak.
"The concern is valid," said A.B. Culvahouse Jr., a former White House counsel under Reagan. "I respect the Secret Service, and if they say the bond is important . . . then I pay great deference to it," he added. "But it doesn't fit any legal construct I'm aware of. . . . I probably wouldn't bet money that a court at the end of the day is going to find such a privilege, to be frank."
The Secret Service, which began protecting presidents in 1901 after William McKinley's assassination, traditionally has guarded their privacy just as fiercely as their safety. After four retired agents provided author Seymour M. Hersh with tales of womanizing by President John F. Kennedy, Merletti last year sent out a stern letter chastising them and warning other current and former agents not to follow their example.
As it is, some occupants of the White House already are wary of their protectors. Early in the Clinton administration, Hillary Rodham Clinton became infuriated at a gossip column report that she had thrown a lamp at her husband in a fit of pique. While denying the incident, the first lady suspected the Secret Service of generating the item and bristled at "the idea of having spies in her own home," as a former official put it.
Bush addressed the issue of mistrust in his letter, details of which were obtained by The Washington Post and other news organizations.
"What's at stake here is the protection of the life of the president and his family, and the confidence and trust that a president must have in the USSS," Bush wrote. "If a president feels that Secret Service agents can be called to testify about what they might have seen or heard, then it is likely that the president will be uncomfortable having the agents nearby."
Bush aide Michael Dannenhauer said the former president wrote the letter at his own initiative because of his respect for the Secret Service.
Bush has been on the other end of this dilemma himself. In 1992, a House task force wanted information from the Secret Service to determine whether Bush went to Paris in 1980 to cut a secret deal with Iran to delay the release of American hostages and thus influence the election that made him vice president.
The Secret Service resisted, but eventually allowed investigators to look at logs showing that Bush was in the United States at the time and could not have been in Paris on the dates in question.
Staff writer George Lardner Jr. contributed to this report.
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